Letters advertising a home for the care and protection of
pregnant unmarried women and their infants are not "obscene, lewd
or lascivious" within § 211, Crim.Code, even when mailed, without
excuse, to refined women.
Swearingen v. United States,
161 U. S. 446. P.
272 U. S.
656.
4 F.2d 765 reversed.
Page 272 U. S. 656
Certiorari (268 U.S. 687) to a judgment of the circuit court of
appeals affirming a conviction for mailing an obscene, lewd, and
lascivious card and letter.
MR. JUSTICE McREYNOLDS delivered the opinion of the Court.
The circuit court of appeals, 4 F.2d 765, affirmed a judgment of
conviction under an indictment which charged that petitioner
deposited in the post office at El Paso, Texas, for conveyance
through the mails, an obscene, lewd, and lascivious printed card
and letter, in violation of § 211, Criminal Code. There were 11
counts, identical in all respects, except that each named a
different addressee, generally an unmarried woman.
Copies of the card and letter were set out
in haec
verba. They were intended to advertise the Queen Ann Private
Home for unmarried women during pregnancy and confinement, who
prefer to be away from home during such time in order "to preserve
individual character or family reputation." The letter, ostensibly
intended for a doctor, states: the home is a private place for the
care and protection of a few unfortunate women
"until the time when they may return to their homes and friends,
free from the burden of their mistake, to become useful members of
society. . . . We find homes for infants by adoption when desired,
or provide board for them at reasonable rates."
Only persons recommended by reputable physicians are accepted,
and it invites visits by physicians.
Page 272 U. S. 657
Section 211, Criminal Code, was taken from § 3893, Revised
Statutes. The pertinent portions follow:
"Every obscene, lewd, or lascivious, and every filthy book,
pamphlet, picture, paper, letter, writing, print, or other
publication of an indecent character . . . is hereby declared to be
nonmailable matter. . . . Whoever shall knowingly deposit, or cause
to be deposited for mailing or delivery, anything declared by this
section to be nonmailable . . . shall be fined not more than five
thousand dollars or imprisoned not more than five years, or
both."
The Solicitor General, with his usual commendable candor, after
calling attention to the facts disclosed by the record and relevant
opinions, adds:
"It is not so easy to believe that circulars of this kind could
to any substantial degree undermine morals or induce delinquency.
To some, such a result would seem altogether fanciful."
In
Swearingen v. United States, 161 U.
S. 446,
161 U. S. 450,
where the indictment charged that the plaintiff in error mailed a
newspaper containing an "obscene, lewd, and lascivious article,"
contrary to § 3893, Revised Statutes, this Court said:
"The offense aimed at in that portion of the statute we are now
considering was the use of the mails to circulate or deliver matter
to corrupt the morals of the people. The words 'obscene,' 'lewd'
and 'lascivious,' as used in the statute, signify that form of
immorality which has relation to sexual impurity, and have the same
meaning as is given them at common law in prosecutions for obscene
libel. As the statute is highly penal, it should not be held to
embrace language unless it is fairly within its letter and spirit.
Referring to this newspaper article, as found in the record, it is
undeniable that its language is exceedingly coarse and vulgar, and,
as applied to an individual person, plainly libelous. But we cannot
perceive in it anything of a lewd, lascivious, and obscene
tendency, calculated to corrupt and debauch
Page 272 U. S. 658
the mind and morals of those into whose hands it might
fall."
Notwithstanding the inexcusable action of petitioner in sending
these advertisements to refined women, it is not possible for us to
conclude that the indictment charges an offense within the meaning
of the statute as construed by the opinion just cited. The motion
to quash should have been sustained by the trial court.
The judgment below must be reversed, and the cause remanded to
the district court, Western District of Texas, for further
proceedings in harmony with this opinion.
Reversed.